Citation Nr: 0715842
Decision Date: 05/28/07 Archive Date: 06/11/07
DOCKET NO. 03-03 605 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
What evaluation is warranted for a mechanical back strain
from August 12, 2000?
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
ATTORNEY FOR THE BOARD
S. Grabia, Counsel
INTRODUCTION
The veteran served on active duty from November 1992 to
August 2000.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2001 rating decision of the
Winston-Salem, North Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA) which granted service
connection for a mechanical back strain and assigned a
noncompensable evaluation from August 12, 2000. The veteran
disagreed with the rating assigned.
By rating action in May 2002 the rating for the disorder was
increased to 10 percent from August 12, 2000.
This case was remanded by the Board for additional
development in February 2004. The case has now been returned
for adjudication.
The United States Court of Appeals for Veterans Claims
(Court) has indicated that a distinction must be made between
a veteran's dissatisfaction with the initial rating assigned
following a grant of service connection (so-called "original
ratings"), and dissatisfaction with determinations on later-
filed claims for increased ratings. See Fenderson v. West, 12
Vet. App. 119, 125-26 (1999). Inasmuch as the claim for a
higher evaluation for a mechanical back strain was placed in
appellate status by a notice of disagreement expressing
dissatisfaction with an original rating, the Fenderson
doctrine applies to this issue. Hence, the Board has restyled
this rating question in accordance with the Fenderson
doctrine.
FINDINGS OF FACT
1. Prior to September 26, 2003, the veteran's mechanical low
back strain was not manifested by more than a slight
limitation of lumbar motion, or by more than characteristic
pain on motion.
2. Since September 26, 2003, forward thorocolumbar flexion
has been greater than 60 degrees, the combined range of
thorocolumbar motion is greater than 120 degrees, and there
is no evidence of muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis.
CONCLUSION OF LAW
Since August 12, 2000, the criteria for the assignment of a
rating in excess of 10 percent for mechanical low back pain
have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West
2002); 38 C.F.R. § 4.71a, Diagnostic Code 5292, 5295 (2002);
38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10,
4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., evidence
of veteran status; existence of a current disability;
evidence of a nexus between service and the disability; the
degree of disability, and the effective date of any
disability benefits. The veteran must also be notified to
submit all evidence in his possession, what specific evidence
he is to provide, and what evidence VA will attempt to
obtain. VA thirdly has a duty to assist claimants in
obtaining evidence needed to substantiate a claim. This
includes obtaining all relevant evidence adequately
identified in the record, and in some cases, affording VA
examinations. 38 U.S.C.A. § 5103A.
In this case, there is no issue as to providing an
appropriate application form or completeness of the
application. Written notice provided in the January 2003
statement of the case, and in March 2004 correspondence,
amongst other documents considered by the Board, generally
fulfills the provisions of 38 U.S.C.A. § 5103(a), save for a
failure to provide notice addressing the type of evidence
necessary to establish an effective date for the disability
on appeal. The claim was readjudicated in a February 2007
supplemental statement of the case. The failure to provide
notice of the type of evidence necessary to establish an
effective date for the disability on appeal is harmless
because the Board has determined that the preponderance of
the evidence is against the claim. Hence, any questions
regarding what effective date would be assigned are moot.
The Board acknowledges that under 38 U.S.C.A. § 5103(a),
notice must be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim for VA benefits. In this case, any error was cured
by providing notice and readjudicating the claim. The
veteran has been afforded a meaningful opportunity to
participate in the adjudication of his claim, to include the
opportunity to present pertinent evidence. Thus any error in
the timing was harmless, the appellant was not prejudiced,
and the Board may proceed to decide this appeal. Simply put,
there is no evidence that any VA error in notifying the
appellant that reasonably affects the fairness of this
adjudication. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549
(Fed. Cir. 1998).
Finally, VA has secured all available pertinent evidence and
conducted all appropriate development, and there is no
pertinent evidence which is not currently part of the claims
file. Hence, VA has fulfilled its duty to assist the
appellant in the prosecution of his claim.
Criteria
The veteran contends that the disability rating assigned for
his mechanical back strain should be increased to more
accurately reflect the severity of his symptomatology.
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings in the Rating
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2006).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). An appeal from the initial assignment of a disability
rating requires consideration of the entire time period
involved, and contemplates "staged ratings" where warranted.
Fenderson. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2006).
The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case." Butts v. Brown,
5 Vet. App. 532, 538 (1993). One diagnostic code may be more
appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology. Any change in a diagnostic code
by a VA adjudicator must be specifically explained. Pernorio
v. Derwinski, 2 Vet. App. 625, 629 (1992).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential the examination on which ratings
are based adequately portray the anatomical damage, and the
functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. A little used part of the musculoskeletal system
may be expected to show evidence of disuse, either through
atrophy, the condition of the skin, absence of normal
callosity or the like. 38 C.F.R. § 4.40.
Since the veteran filed his claim, there have been a number
of changes in the criteria for rating back disorders under 38
C.F.R. § 4.71a, including a lumbosacral strain under
Diagnostic Code 5237. The new criteria for rating a
lumbosacral strain became effective September 26, 2003. The
supplemental statement of the case issued in February 2007
notified the veteran of the new rating criteria.
Accordingly, adjudication of his claim may go forward. See
Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
Given the change in law, VA may only apply the old rating
criteria for a lumbosacral strain prior to September 26,
2003, and it may only consider the new rating criteria when
rating the disorder for the term beginning that date. Kuzma
v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).
When evaluating disabilities of the musculoskeletal system,
38 C.F.R. § 4.40 allows for consideration functional loss due
to pain and weakness causing additional disability beyond
that reflected on range of motion measurements made in a
clinical setting. DeLuca v. Brown, 8 Vet. App. 202 (1995).
Further, 38 C.F.R. § 4.45 provides that consideration also be
given to weakened movement, excess fatigability, and
incoordination.
Prior to September 26, 2003, 38 C.F.R. § 4.71a, Diagnostic
Code 5295 provided that a 10 percent evaluation was warranted
for a lumbosacral strain with characteristic pain on motion.
A 20 percent rating was warranted for a lumbosacral strain
with muscle spasm on extreme forward bending, and a
unilateral loss of lateral spine motion in standing position.
38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003).
Prior to September 26, 2003, a 10 percent rating was
appropriate for a slight limitation of lumbar spine motion,
and a 20 percent rating was appropriate for a moderate
limitation of lumbar spine motion. 38 C.F.R. § 4.71a,
Diagnostic Code 5292 (2003).
Under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2006), a
lumbosacral strain is evaluated under the general formula for
back disorders. The rating criteria are controlling
regardless whether there are symptoms such as pain (whether
or not it radiates), stiffness, or aching in the area of the
spine affected by residuals of injury or disease. Under the
new Diagnostic Code a 10 percent evaluation is warranted for
forward flexion of the thorocolumbar spine that is greater
than 60 degrees but not greater than 85 degrees; combined
range of motion of the thorocolumbar spine greater than 120
degrees but not greater than 235 degrees; muscle spasm,
guarding, or localized tenderness not resulting in an
abnormal gait or abnormal spinal contour; or a vertebral body
fracture with loss of 50 percent or more of the height.
A 20 percent evaluation is warranted for forward flexion of
the thorocolumbar spine greater than 30 degrees but not
greater than 60 degrees; or when the combined range of motion
of the thorocolumbar spine is not greater than 120 degrees;
or when there is muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis.
38 C.F.R. § 4.71a.
Under these revisions, the "combined range of motion" refers
to the sum of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
combined range of motion of the cervical spine is 340 degrees
and of the thorocolumbar spine is 240 degrees. Associated
objective neurological abnormalities (e.g., bladder and bowel
impairment) are to be evaluated separately. Id.
Background
At a December 2000 VA examination the veteran reported that
his back was sometimes stiff in the morning. It occasionally
catches and gives him sharp pain which did not last long.
Examination revealed an erect posture and normal gait. The
range of motion was normal in all planes of motion. An X-ray
was determined not to be necessary. The diagnosis was
mechanical low back pain with normal physical examination
findings.
At an April 2002 VA examination the veteran reported back
pain which radiated to his shoulders from the lower back.
There was no weakness or paralysis. Examination revealed a
normal gait with no tenderness directly over the vertebrae
from the dorsal to the lumbar spine. Vertebral alignment was
judged to be normal. The veteran was somewhat tense over the
paravertebral area, but there was no localized tenderness on
examination. Range of motion study revealed forward flexion
to 80 degrees, extension to 20 degrees, bilateral lateral
flexion to 40 degrees, left lateral rotation to 20 degrees,
and right lateral rotation to 25 degrees without significant
discomfort. Reflexes were intact and strength was normal.
X-rays were normal.
At a May 2005 VA examination the veteran reported no problems
sitting or standing, and he denied bowel, bladder, or sexual
dysfunction. He had no specific limitations of activities
except from running. His posture was erect and there was no
percussion tenderness over the entire spine. There was no
sciatic notch tenderness, but moderate tenderness on
palpation of the paraspinous muscles was noted. Forward
flexion was mildly limited; lateral flexion produced low back
pain more on the left than on right. Mild paraspinous muscle
spasm was evident. Deep tendon reflexes were normal at the
knees, but decreased at the ankles. There were no fixed
deformities, or scoliosis noted.
At a January 2006 VA examination, the veteran's posture was
erect and balanced with level shoulders and iliac crest.
There was moderate spasm and palpable tenderness in the
paraspinal muscles of the thorocolumbar spine between right
T10 and S1. There was a similar minimal left sided
distribution, as well as left paraspinal muscle tenderness
and spasm. Straight leg raising was normal bilaterally with
only slight lumbar discomfort on the right. Deep tendon
reflexes were 2+ equal and active. Range of motion study
revealed forward flexion to 90 degrees, extension to 25
degrees, left lateral flexion to 30 degrees, right lateral
flexion to 20 degrees; bilateral lateral rotation to 25
degrees. Discomfort was noted on the extreme of left and
right lateral flexion and rotation and full flexion. X-rays
were normal. There was no lower extremity sensory deficit.
The diagnosis was chronic recurrent lumbosacral strain.
Analysis
After reviewing the record, the Board finds that prior to
September 26, 2003, the veteran's mechanical back strain was
manifested primarily by complaints of occasional back pains.
On examination in December 2000, however, the veteran
exhibited a full range of lower back motion. The range of
low back motion at the April 2002 VA examination was no more
than slightly limited without significant discomfort.
Reflexes were intact, strength was normal and x-rays were
normal.
Therefore, with respect to the period prior to September 26,
2003, it is not shown that there was more than slight
limitation of motion shown. There was no evidence of muscle
spasm on extreme forward bending or a unilateral loss of
lateral spine motion in a standing position, or any greater
level of impairment. The preponderance of the evidence is
against finding that more than a 10 percent rating was for
assignment for the period prior to September 26, 2003, under
Diagnostic Code C 5292, or any applicable alternate rating
criteria, to include Diagnostic Code 5295, on the basis of
limitation of motion.
At a January 2006 VA examination range of motion study showed
forward flexion to 90 degrees and the combined range of
thorocolumbar motion was 220 degrees. As of September 26,
2003, and beyond, the range of motion of the thorocolumbar
spine clearly places the veteran's mechanical back strain
within the criteria for the assignment of a 10 percent
evaluation under Diagnostic Code 5237. While spasms have
been noted, none have been severe enough to result in a gait
impairment or abnormal spinal contour. Further, no gait or
posture disturbances were shown at any VA examination.
Accordingly, there is no reasonable basis presented for an
increase in the schedular evaluation for assignment under the
general rating formula prior to September 26, 2003, or
subsequently.
In conclusion, the 10 percent rating for a low back strain
adequately reflects the extent of disability present. The
Board finds no basis for a rating greater than 10 percent
under any applicable rating criteria, as the veteran's
medical records and examinations since August 2000 have never
revealed more than slight limitation of motion of the lumbar
spine. There is no evidence of moderate limitation of motion
to warrant a higher disability rating under Code 5292. There
also is no evidence of neurologic abnormality. Similarly,
considering the factors affecting functional loss the Board
cannot conclude that the overall disability picture warrants
an evaluation greater than 10 percent during any time between
August 12, 2000 and the present. Specifically, the VA
examinations of December 2000, April 2002, May 2005, and
January 2006 show no finding of weakened movement, excess
fatigability, incoordination, swelling, and deformity or
atrophy of disuse to warrant a higher rating. 38 C.F.R. §
4.7.
Finally, it is well to note that the assignment of a 10
percent evaluation acknowledges that the disorder is
productive of some degree of impairment. Van Hoose v. Brown,
4 Vet. App. 361, 363 (1993). Hence, an increased evaluation
under these regulations for painful motion is not in order.
The benefit sought on appeal is denied.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Entitlement to a rating in excess of 10 percent for a
mechanical back strain at any time since August 12, 2000 is
denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs